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Queensland Privacy Review and Law Reform Report

Today, the Queensland Law Reform Commission published a final report, Report No 77Review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies.

The Report includes a draft bill:  DRAFT SURVEILLANCE DEVICES BILL 2020

Facebook in Australia?

Facebook claims it can’t be sued by Aussie privacy watchdog

In a court hearing on Friday, 26 June 202, US-based Facebook has argued that it does not carry on business in Australia despite users in Australia accessing its website, calling for the dismissal of action brought by the Australian Information Commissioner over alleged privacy breaches and Cambridge Analytics.

French High Court Overrules Takedown Law

The French Constitutional Council struck down critical provisions of a law passed by France’s parliament last month to combat online hate speech.

The law had put the onus for analysing content solely on tech platforms such as Facebook without the involvement of a judge, within a very short time frame, and with the threat of hefty penalties.

Decision (in French of course)

NY Times article

Software Applications Hard to Patent in Australia

The decision today of the Full Court in Commissioner of Patents v Rokt  further clarifies the position in relation to whether a computer implemented method can be patentable in Australia.  

The decision follows a series of decisions considering similar issues, which each focus on whether particular software can be the subject of a patent.  In summary, the Full Court finds that the software in question in this case, which related to a method of presenting targeted advertising to a consumer, was not a patentable invention, as it was merely a method for using the well known and understood functions of a computer.

The decision reinforces the fact that a method which gets a computer to do something it has not done before is not patentable – to be patentable the method would have to enable the computer to do something which it was previously unable to do. 

The law of patentable subject matter in Australia is illogical and discriminates against inventors who implement their inventions in software.

Electronic Signing of Agreements and Deeds for Companies in Australia

This article highlights the changes to the law in Australia regarding electronic signing of documents by companies.  COVID-19 brought about these changes, that will stay in place once the Covid is gone.

https://www.kwm.com/en/au/knowledge/insights/signing-contracts-electronically-just-got-easier-for-companies-20200506

UK Financial Regulator Publishes Insights from the Cyber Coordination Groups

A UK financial regulator has published a report regarding cybersecurity risks.

"CCG members also noted the development of cloud security as an emerging risk area, and that data held in cloud environments should be encrypted and protected by appropriate intrusion detection/prevention controls. In some cases, it may be advisable to include “kill switch” technology, which allows for immediate disconnection to manage the risk of a cyber attack having a more widespread impact."

See
https://www.ropesgray.com/en/newsroom/alerts/2020/03/UK-Financial-Conduct-Authority-Publishes-Insights-from-the-Cyber-Coordination-Groups

May The Fourth Be With Disney

When Disney asked “Star Wars” fans to share their favorite memories of the franchise using the hashtag #MayThe4th, it said responses would fall under its terms of use agreement. Social media users were scathing.

See NY Times Article: https://www.nytimes.com/2020/04/28/business/star-wars-may-the-fourth-disney.html


Google liable for defamation based on search results

A recent Australian case concerning defamation and Google:
Defteros v Google LLC [2020] VSC 219 (30 April 2020)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC//2020/219.html

"Google submitted that it could not be liable as a secondary publisher, because its search engine is fully automated and does not intend the communication of any particular words or images, including any third party webpage to which a user might navigate. I do not accept this submission....
As the law stands in Australia, the common law casts the publication net wide. The liability of publishers is then limited by a range of common law and statutory defences. In particular, the common law ‘defence’ of innocent dissemination operates to limit the potential liability of search engine providers. Later in this judgment, I also consider the application of the statutory defence of qualified privilege to Google search results."

Facebook in Court over Cambridge Analytics

This recent Australian judgment concerns substituted service on Facebook.  It relates to Cambridge Analytics breach.  Interestingly, it discusses COVID-19.  Facebook did not appear in court.
Australian Information Commission v Facebook Inc [2020] FCA 531

Instagram can sublicense your photos

When you make a public post on Instagram, you allow Instagram to sublicense you photo to anyone using the Instagram API.

One professional photographer found out about this the hard way.

"Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made."

See Sinclair v. Ziff Davis and Mashable

Google sued again for identity of users

Melbourne brothel wants order compelling Google to release info on anonymous reviewers
Google has been served with a third preliminary discovery lawsuit in Australia seeking the identity of online reviewers, this time by a Melbourne brothel and escort service seeking to eliminate 11 one-star reviews from the search engine.

Facebook in Court

In a surprising move, the Australian Information Commissioner has sued Facebook in Australia over giving access to personal information of thousands of Australians to Cambridge Analytica.

https://www.abc.net.au/news/2020-03-09/facebook-privacy-oaic-information-commissioner/12039642

https://www.businessnewsaus.com.au/articles/australian-information-commissioner-takes-facebook-to-court.html

"We consider the design of the Facebook platform meant that users were unable to exercise reasonable choice and control about how their personal information was disclosed," says Australian Information Commissioner and Privacy Commissioner Angelene Falk.

Musicians Create Every Melody in Existence to Avoid Copyright Infringement

Two programmers who are musicians have supposedly created every possible MIDI melody in existence, saved this to a hard drive, copyrighted the whole thing, and then released it all to the public in an attempt to stop musicians from getting sued for copyright infringement.

Vice Article

Whether this actually accomplishes what they want to do is uncertain.

Using small snippets of public available music (or computer code) to create a work, that is the same as a well-known larger work, may still be copyright infringement.  It depends on whether the creator knew of and had access to the well-known larger work.

See Dais Studios case, where Ben Petro copied public Java script to create a larger computer program.  See also AFR Article

This also has relevance to AI programs and how they are trained.

US-China spat ramps up over key UN post

The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war.

http://www.theage.com.au/world/sad-ambassador-slams-us-attack-on-chinese-bid-for-wipo-20200226-p544tg.html?btis

Australian Francis Gurry is the outgoing head of the UN World Intellectual Property Organisation.


Domain Name Study - Which Domain Names don't get renewed

Research uncovered some interesting results, such as:
·     Only 29.79% of all domains are renewed after one year
·     New GTLDs (like .XYZ) have far higher churn rates than .COM, .NET, .ORG etc

https://www.whoishostingthis.com/blog/2019/12/05/domain-study

Jurisdiction over Google

In Canada, on June 13, 2014, a Canadian court issued an injunction requiring Google to remove certain websites from its internet search results worldwide. Those websites were operating in violation of previous court orders and were being used to market a product that the plaintiffs say was developed through theft of their trade secrets.  The injunction granted was on a worldwide basis.

The injunction was upheld by both the Court of Appeal and the Supreme Court of Canada, but Google then obtained an order from a California court making it unenforceable in the United States. Google now applies to set aside or vary the injunction.  Google was unsuccessful.

See Equustek Solutions Inc. v. Jack, 2018 BCSC 610 https://www.bccourts.ca/jdb-txt/sc/18/06/2018BCSC0610.htm

Comments in this Canadian Blog

X v. Twitter


A case in NSW requiring Twitter to remove posts on a worldwide basis that contained confidential information.


Comment in this blog post.

Who owns the copyright and inventions produced by an AI machine?

These articles are some of the interesting articles dealing with ownership of copyright and patentable inventions produced by an AI machine or robot.
  • Machine learning to machine owning: Redefining the copyright ownership from the perspective of Australian, US, UK and EU Law. European Intellectual Property Review(2018) 40 (11), pp. 722-728.  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293518
  • Artificial Intelligence, Copyright and Accountability in the 3A Era: The Human-like Authors Are Already Here: A New Model, 2017 M. L. R<. 659   https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1199&context=lr
  • When Artificial Intelligence Systems Produce Inventions: The 3A Era and an Alternative Model for Patent Law (March 1, 2017). Cardozo Law Review, http://cardozolawreview.com/wp-content/uploads/2018/08/RAVID.LIU_.39.6.5-1.pdf
  • Recognizing Artificial Intelligence (AI) as Authors and Investors under U.S. Intellectual Property Law, 24 Rich. J.L. & Tech. i (2018), https://jolt.richmond.edu/files/2018/04/Pearlman_Recognizing-Artificial-Intelligence-AI-as-Authors-and-Inventors-Under-U.S.-Intellectual-Property-Law.pdf


  • Also, have a look at these videos about machine generated art:

    When are AI systems legally liable

    Here are some good readings if you are interested in the legal responsibility of AI systems:


  • Machines without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (2014)  http://euro.ecom.cmu.edu/program/law/08-732/AI/Vladeck.pdf
  • Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies (May 30, 2015). Harvard Journal of Law & Technology, Vol. 29, No. 2, Spring 2016.  http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech353.pdf
  • Servers and Waiters: What Matters in the Law of A.I. 21 Stan. Tech. L. Rev. 167 (2018), https://law.stanford.edu/publications/servers-and-waiters-what-matters-in-the-law-of-a-i/
  • Accountable Algorithms, 165 U. Pa. L. Rev. 633 (2017) https://scholarship.law.upenn.edu/penn_law_review/vol165/iss3/3
  • Morality and AI Machines

    An interesting site from MIT -- a platform for judging human insight into moral decisions made by machines:

    http://moralmachine.mit.edu/

    How do you prepare for the AI revolution?

    This is a great book to help you prepare for the AI revolution that is about to hit us:




    Also, a similar book that is more general:


    Another ACCC case regarding misleading consumer reviews

    The ACCC has launched another case against ServiceSeeking regarding misleading online reviews of tradespeople.  See story here.

    This is similar to the Meriton case, discussed in posts below, regarding misleading hotel reviews on TripAdvisor.

    Copyright Act consultations

    The Australian Dept of Communication and the Arts has sought submissions for reforms to the Copyright Act.  The submissions are now public: https://www.communications.gov.au/have-your-say/copyright-modernisation-consultation

    See also the Productivity Commission's final report on Australia's Intellectual Property Arrangements.

    Patentable Subject Matter

    Rokt is fighting in Federal Court to have a patent application allowed.  The Commissioner of Patents is opposing the grant of the patent:  An invention that simply puts "a business method or scheme into a computer" is not patentable, the Commissioner of Patents told a court on the first day of a highly anticipated trial over a rejected software patent application by marketing tech startup Rokt.

    The judge hearing the case is Justice Robertson.  The oral argument went for 3 days, and finished on 20 July 2018.  The judge is now writing a written decision.

    See Australian Financial Review background story, and summary of Patent Office decision being appealed is here.

    See blog post here.

    Google may be liable for defamation for search engine results

    Today, the High Court of Australia decided that Google must go to trial to determine whether Google is liable for defamation regarding its display of search engine results and also in respect of Google's autocomplete function.

    See KWM article Google this: The High Court allows Google to be sued for defamation

    See Sydney Morning Herald article

    See HCA judgment Trkulja v Google LLC [2018] HCA 25

    .au Domain Names - Policy Review

    auDA has constituted a policy review panel to review virtually all domain name policies in Australia, as well as to recommend a policy to implement direct registration in Australia.  I am chair of this policy review panel.

    See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/

    I strongly urge you to review the issues papers and to provide feedback.

    Direct registration will allow registration of domain names in Australia such as cyberspace.au.

    There are other reforms being discussed.  See the Issues Paper that was published at the end of January.


    Liability of Intermediaries for copyright infringement

    At the end of last year, the Federal Court of Australia issued a judgment in against the Redbubble platform, in favour of Pokemon.

    The judgment is here:  Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154

    This is an important copyright and consumer protection law case.  Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).

    There is also a similar case pending, involving the Hell's Angels.

    A good summary is located on the IP Whiteboard blog.

    Google Found Responsible for Defamation

    The South Australian Full Court decided against Google Inc. in the recent case of Google v. Duffy.  See http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2017/130.html

    Google's search results included defamatory material.  Google was found to be a secondary publisher.

    Case note here.

    AirBNB Hell

    An interesting website that points out the risks of using AirBNB for both hosts and guests, www.airbnbhell.com

    Digital Watermarks on Printed Documents

    "The question is how the government identified her so quickly, and the answer may be that she was inadvertently outed by the Intercept itself. That’s because the website posted an image of the leaked document containing an almost-invisible code applied by the printer that produced the document sent to the Intercept. The digital watermark identified the printer model and serial number, along with the time and date then document was printed out."

    See LA Times

    Meriton found guilty of manipulating TripAdvisor Reviews

    Serviced apartment and hotel operator Meriton was found to have engaged in illegal conduct by manipulating TripAdvisor reviews.  The ACCC sued Meriton and won.  The ACCC brought actions under s18 and the little used s34 of the Australian Consumer Law.

    See judgment at:  http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305

    According to the judgment, Meriton manipulated TripAdvisor in two ways:

    "The respondent (Meriton) conducts a business of offering serviced apartment accommodation at (at least) 13 properties in Queensland and New South Wales. These properties appear on the TripAdvisor website. During the period November 2014 to October 2015 (the relevant period), Meriton participated in the Review Express service offered by TripAdvisor.  On a weekly basis, Meriton provided TripAdvisor with the email addresses of guests who had stayed at its properties and TripAdvisor sent email invitations to these guests to post a review. However, rather than sending TripAdvisor the email addresses of all guests who had stayed at its properties (other than those who had requested that their details not be provided), Meriton adopted the following two practices:
    (a)    The first practice was to add the letters MSA” (which stand for Meriton Serviced Apartments) to the front of the email addresses of certain guests. This rendered the email address invalid. This practice was applied to guests who had made a complaint or were otherwise considered likely to have had a negative experience at a Meriton property.  I will refer to this practice as the MSA-masking practice.
    (b)    The second practice was to withhold from TripAdvisor the email addresses of all the guests who had stayed at a property during a period of time when there had been major service disruption (such as the lifts not working, no hot water, etc). I will refer to this practice as the bulk withholding practice."

    Alleged Illegal Conduct by Apple

    Apple is being sued in Australia by the ACCC in relation to the Error 53 software fault in iPhones.  When this fault bricked iPhones and iPads, Apple refused to fix the problem where third parties had done prior repairs. 

    The latest judgment on a procedural motion is http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1329

    Regulation of Automated Vehicles in Australia

    The Australian National Transport Commission has released a discussion paper Regulatory options to assure automated vehicle safety in Australia.  The paper identifies 4 regulatory options for a safety assurance system for automated vehicle technology.

    Submissions for this discussion paper are open until 4pm, Friday, 28 July 2017.

    The NTC expects to present it preferred regulatory option to the Minister in November 2017.

    Metatags and Google advertisements found to be trademark infringements

    In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.

    The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.

    The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.

    The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements:  use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.

    First Amendment and Social Media

    Social media and First Amendment issues were debated in oral argument before the US Supreme Court in Packingham v. North Carolina.

    See:  http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/

    Issue:  Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

    In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square.  Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas.  The First Amendment includes not only the right to speak, but the right to receive information.

    It is hard to control where your ads will appear online

    Advertisers are leaving YouTube, because their advertisements are being placed in close proximity to hate speech and other offensive material.

    See NY Times story, Perils of Online Ads

    Book - The Last Days of Night

    An interesting book, a novel, about a new lawyer in New York, Paul Cravath, who founded one of NY's best law firms, and his representation of Westinghouse against Edison in patent disputes.  The Last Days of Night.  It shows that patent disputes have been going on for 100 years whenever new technology suddenly blossoms.

    GST Tax obligations for non-Australian offshore sellers

    Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1) to assist foreign suppliers of digital and other intangible products to determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they make to Australian consumers.
    The draft GST ruling explains what steps suppliers should take to collect evidence to establish whether or not the recipient of a supply is an Australian consumer.

    Assaults on Privacy in the USA

    A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America."  See article here.

    EU ePrivacy

    On 10 January 2017, the European Commission published a Proposal for a Regulation could have significant implications for Internet-based services and technologies.
    The Proposal seeks to revise the current EU ePrivacy Directive.  It creates strict new rules regarding confidentiality of electronic communications, including content and metadata. In addition, the Proposal amends the current rules on the use of cookies and similar technologies, and direct marketing. The rules apply to EU and non-EU companies providing services in the EU, and are backed up by significant enforcement powers—fines of up to four percent of a company's global turnover.
    The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the General Data Protection Regulation (GDPR) in April 2016.

    United States Copyright Office Releases Report on Software-Enabled Consumer Products

    Yesterday, the U.S. Copyright Office released a report titled "Software-Enabled Consumer Products."

    The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like. 

    The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.

    The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.

    The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.

    Apple Store Privacy Issues

    Do you trust Apple Store employees when they take away your phone to fix it?

    Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.

    This raises both privacy and copyright issues.  It is also creepy.

    See Brisbane Times

    Swipes per minute

    In one minute, there are 4,166,667 Facebook likes, 347,222 tweets, 590,279 Tinder swipes and 284,722 Snapchat snaps.  See BRG

    Revenge Porn

    A story in the NY Times about a revenge porn civil case, and whether the decision by prosecutors to drop a corresponding criminal case will have any impact on the civil case.

    "In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.

    The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."

    See NY Times

    Consequential Loss After Hacking Decision from the USA

    An interesting decision from the United States (11th Circuit appeals court) in Silvertop Systems -- decision here.

    There is an interesting discussion of consequential loss, that starts at the heading "LMT's Counterclaim for Breach of Contract"

    Facts were these:

    ·         Supplier (Silverpop) provided an email marketing service.  Customers loaded up email addresses and Supplier would send out mass emails in a form specified by the customer to addresses on the list.
    ·         Hackers got into the Supplier’s system and got access to several customer’s marketing lists, including LMT’s list.
    ·         The contract between Silverpop and LMT had a confidentiality clause (obligation to protect the list against unauthorised disclosure to third parties) and an exclusion of consequential loss.
    ·         Amongst the claims and counterclaims, was a claim from LMT that Silverpop had breached the confidentiality obligation and that the damage suffered by LMT was the sale value of the marketing list, which they said was now worthless.

    This is what the court decided – assuming it was correct that the value of the marketing list was now zero, that was a consequential loss.  The court discussed the difference between general damages and consequential damages (which is remarkably similar to the old English decision of Hadley v Baxendale).  The direct loss which would have been recoverable by LMT if there had been a breach of the confidentiality obligation was the loss of the value of the service (but that is not what LMT claimed).

    Discount Accommodation and Affiliate Payments

    Online travel agents make commissions of approximately 15% to 25% of the price of the accommodation booked.  Some share that commission with travellers through loyalty programs.  Others give discounts upfront, or share some of the commission with "affiliates" who refer other customers.  One such service is JetSetter, who has discount quality accommodation, and shares 5% with the guest and 5% with the referring affiliate.  See Jetsetter.  (I use this service by the way, and it is good.   I have stayed in luxury accommodation at great prices.)

    Another good referral program is OFX (OzForex) which is an international wire money transfer business.  It is in competition with Western Union, and is much better value.  See OFX website.

    Echo from Amazon

    The relatively new Echo device from Amazon is getting great press.  It will be interesting to see what legal issues arise from a voice controlled device in your home that connects with other systems.

    There is also the new Amazon Tap.

    Any why is Amazon opening physical book stores?


     

    Apple v The Government

    If you are following the Apple v US Government legal process over the FBI request to brute force break of the passcode on Syed Farook’s work phone, the link below has a good summary and also a link to the 65 page motion.

    Copyright in Instagram Photos

    See this article regarding a copyright claim in respect of Instagram photos.

    Story here.

    I have met a number of people who are earning good money promoting products on Instagram and on blogs.

    Business Method Patents In Australia

    After a long delay, the Australian Federal Court (Appeals Division) has finally decided the case of Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177.  This is an appeal from an appeal from a decision by the Commissioner of Patents not to grant a patent to a method and system for computerised collection of information relevant to assessment of a person’s competency for a recognised qualification standard.

    The case considered whether this invention was patentable subject matter in Australia.

    The Court decided that this invention was not patentable subject matter in Australian.

    "A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to “put” a business method “into” a computer to implement the business method using the computer for its well- known and understood functions.

    Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?

    ... it is apparent that, other than the integers providing that the computer processes the criteria to generate corresponding questions and presents those questions to the user, the method does not include any steps that are outside the normal use of a computer. It is not suggested that the creation of the plurality of assessable criteria themselves form the basis of the claimed invention. They are present on the NTIS website from which they are retrieved. It is not suggested that the presentation of the questions or the processing of the user’s responses involve ingenuity themselves or that this constitutes the requisite manner of manufacture. 

    We conclude that the claimed invention is to a scheme or a business method that is not properly the subject of letters patent."

    See also IP Whiteboard

    Personal Information

    The Australian Administrative Appeals Tribunal has decided that companies who collect operational data about services they provide to individual end users, is not personal information about customers.

    See Telstra Corporation Limited and Privacy Commissioner [2015] AATA 99 (18 December 2015)

    The Advocate Defames The Bank on Social Media


    Michael Fraser, who goes under the name of The Advocate, operates a number of complaints-based websites, such as http://openadvicereview.com.au.  He had a big loss in court, in a defamation case brought by Commonwealth Bank.  See AFR story.

    United States Federal Circuit Judges Express Concerns for Current State of Patent Eligibility Law

    There will be no en banc review of a Federal Circuit panel decision that an important medical diagnostic method is ineligible for patent protection under 35 U.S.C. 101. However, in opinions accompanying the order denying review, several Federal Circuit judges expressed concerns for medical diagnostics under the current state of patent eligibility law. Ariosa Diagnostics, Inc. v. Sequenom, Inc., Fed. Cir., No. 14-1139, 2 December 2015.

    The patent at issue is directed at a process for detecting paternally-inherited fetal DNA in maternal blood samples and for performing a prenatal diagnosis based on that DNA. This method permits the diagnosis of possible birth defects without using highly intrusive measures.

    The Federal Circuit panel decision acknowledged that the invention in this case revolutionized prenatal care. However, it ruled that the claimed method is patent-ineligible under Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), because it acts on natural phenomenon with well-understood, routine, and conventional steps. In a concurring opinion, Judge Linn reluctantly agreed but only because of the Supreme Court’s sweeping and unnecessary statements about patent eligibility.

    The Federal Circuit on December 2, 2015, denied the petition for en banc review.

    To read the opinions accompanying the en banc order in this case, click here; to read the panel decision in this case, click here.

    History of Software Patents in the United States

    A good article from the National Law Reviewing regarding the history of software patents in the U.S.

    See History

    Dot Horse

    An interesting blog post concerning the new Dot Horse gTLD:

    http://everythingtrademarks.com/2015/09/13/dot-horsing-around/

    "Despite its stated purpose, it has – inexplicably – brought together a community of equine parodists. "

    Ninth Circuit Rules That Copyright Holders Must Consider Fair Use Before Issuing DMCA Takedown Notice

    Media companies and other copyright holders may need to change the way they deal with infringing content on the Internet.  In a closely watched copyright case, Lenz v. Universal Music Corp. (also known as the "Dancing Baby" case), the United States Court of Appeals for the Ninth Circuit ruled yesterday that copyright holders must consider fair use before issuing takedown notices to remove allegedly infringing content from websites such as YouTube and Facebook. This decision has significant implications for owners of copyright-protected content, especially studios, record labels, publishers and other entities with large content catalogs, as well as individuals and businesses that rely on fair use to exploit copyrighted material owned by others. 

    Redlands Council Threatens Lawsuit against Facebook Posters

    See Brisbane Times

    "Redland City Council has sought to shut down online criticism by sending threatening legal letters to residents over comments made on social media.

    Five residents have received the legal threats in the past week over Facebook posts that suggested, among other things, that political donations from developers had swayed council decisions."

    Australian Government releases survey into online copyright infringement

    The research is said to show that Australia has high levels of online copyright infringement.

    See Government Website with full survey results.

    Copyright and eBooks

    From Australian Copyright Agency:

    The UK Publisher’s Association has successfully gained an order to have that country’s five main internet service providers block consumer access to websites promoting the online theft of ebooks.
    Investigations found at least 80 per cent of the reportedly 10 million ebook titles on seven offshore websites were infringing copyright and almost a million takedown notices had been issued to the sites. The sites make substantial sums of money from referral fees and advertising, with none of that income returning to publishers or authors.
    The UK Publishers Association Chief Executive, Richard Mollet, said: “A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in online infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material.” Read the media release here.
    The UK decision reflects our own situation in Australia where a two-pronged approach aims to curb online piracy.
    Firstly, the creative and telecommunications sectors have jointly established a new code to combat internet piracy. It involves an escalating series of infringement notices being issued to repeat infringers and has been submitted for registration to the Australian Communications and Media Authority.
    At the same time, the Federal Government has legislation before the Senate to allow rights holders to apply to a court for an order requiring ISPs to block offshore websites promoting online theft.
    The Copyright Agency supports these moves and will continue to campaign for copyright and stand up for creators’ rights.
    Murray St Leger,

    Chief Executive

    Should you go to law school in Australia?

    You may have seen reference to the New South Wales Law Society report on the “Future Prospects of Law Graduates” in last Friday’s Australian. If you have not seen the full report here is the link to it. http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/980877.pdf

    Dallas Buyers Club decision - who won?

    The Australian Federal Court decided today that ISP iiNet was required to identify some of its customers who have downloaded the movie "Dallas Buyers Club".  The court imposed restrictions and costs on the copyright holder.  No email addresses were ordered to be disclosed.  Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

    See Court Decision and SMH Article.

    Music Copyright

    "On Tuesday, a federal jury in Los Angeles concluded that Robin Thicke and Pharrell Williams, the performer and primary songwriter-producer of the 2013 pop hit “Blurred Lines,” committed copyright infringement by using elements of the 1977 Marvin Gaye song “Got to Give It Up” in their composition without proper credit. The jury awarded Mr. Gaye’s family approximately $7.3 million, a combination of profits from the song and damages. That’s an attention-getting amount of money, but the verdict itself is far more damning."

    See NYT article

    Queensland Privacy Review and Law Reform Report

    Today, the Queensland Law Reform Commission published a final report,  Report No 77 ,  Review of Queensland’s laws relating to civil surveil...